Kentucky rules committee recommends adoption of transparency rules

The Rules Committee of the Kentucky Horse Racing Commission on Tuesday unanimously recommended that the full commission adopt several rule changes that will allow the agency to make limited comments about ongoing adjudications and open stewards’ hearings to members of the public.

The rule changes are being sought in the wake of criticism of the commission’s refusal to comment on an adjudication involving the trainer Bob Baffert after his horse tested positive for the regulated corticosteroid betamethasone following last year’s Kentucky Derby. Some commission members have expressed frustration over regulations prohibiting any commissioner or staff member from commenting on ongoing adjudications, including simple matters such as confirming hearing dates or the results of drug tests.

Rules limiting comment in ongoing investigations are common at most racing commissions and were designed to protect the due-process rights of licensees.

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The new Kentucky rules would allow the commission or its staff to issue basic comments about potential violations in limited circumstances “if and only if such information would not unduly impact investigations,” according to Jennifer Wolsing, the commission’s legal counsel. The information could include the alleged violation, results of drug tests, “or other information as deemed appropriate,” Wolsing said.

“Our frustration has clearly come from we have certain cases that take long periods of time,” said Mark Simendinger, a commission member and the chair of the rules committee. “No one knows what’s going on; we’re not allowed to say what’s going on. We want to be able to communicate that out. Number one thing here is that it ‘will not unduly impact any investigation.’ I think that’s a two-way sliding door that we would take seriously. We don’t want to impact it in either direction.”

The committee passed the rule change unanimously on a voice vote.

The rule changes also include language that will allow stewards’ hearing to be “open,” though Wolsing and others stressed that the definition of “open” in the language was not identical to the use of the same word in other parts of the regulation requiring public notice for “open meetings.” The language includes a caveat allowing stewards to close the hearing if “there is a situation where federal or state law, the U.S. Constitution, or other laws require a hearing to remain confidential,” Wolsing said.

Bill Landes, a commission and committee member, asked the committee whether a racing participant “as an adversarial party” could ask for the hearing to be closed. Wolsing replied that such a request would have to be justified and discussed with legal counsel to the commission.

Another rule change would require the stewards to hold a hearing on a violation within 60 days of either notifying the racing participant of the violation or the receipt of split-sample tests. In the Baffert case, stewards did not hold a hearing until late January, eight months after the violation. However, that hearing was held up by various legal maneuvers initiated by Baffert’s attorneys.

The rule includes language saying that stewards “may extend [the 60-day window] in their sole discretion upon demonstration of exigent circumstances,” Wolsing said.

The full KHRC is expected to take up the recommendations at a meeting scheduled for April 26.